Criminal Post-Conviction/Habeas: Why Did the Supreme Court Do This?

I started off a long way back — during law school — as a clerk at a capital post-conviction organization (Volunteer Lawyers’ Resource Center, aka, “VLRC”). It was a fulfilling experience and certainly opened my eyes to the reality of capital (death penalty) cases — both in trial and on post-conviction. In particular, I learned to appreciate — to its full-fledged glory — the wonders of “The Great Writ,” writs of habeas corpus. One of the key assertions in a habeas motion (whether federal or state) is often “ineffective assistance of counsel.” It is a tough standard to meet to show ineffective assistance so as to reverse any conviction/sentence (regardless of whether or not involving a capital or non-capital matter).

Well, our Supreme Court, in all its wisdom, decided to make it a bit more difficult — at least for those defendants who ended up taking a plea to the offense. Now, you might think this makes perfect sense. However, there are certainly cases where an unethical attorney — whether trial-shy or just unmotivated — will use persuasion to force a bad plea upon a client. Since I am now dealing with a motion I filed arguing just such an occurrence (on behalf of a kid up in N.W. Florida who appears altogether innocent of the charge), I am sympathetic to allowing defendants to be able to argue ineffective assistance claims following a plea of guilty or no contest.

When will the failings of counsel allow a defendant to successfully challenge his plea bargain through habeas corpus proceedings? After last week’s decision in Premo v. Moore, the answer appears to be: quite rarely indeed. In an opinion by Justice Kennedy that was joined by six of his colleagues, the Court placed a heavy emphasis on both the deference due to decisions made in the course of negotiating a plea bargain and the difficulty faced by a reviewing court when it is asked to exercise “[h]indsight” and to make “second guesses” in cases that produce “no extended, formal record and no actual history to show how the charges have played out at trial.” A habeas corpus petitioner seeking to nullify a plea bargain must meet a “most substantial burden”; here, the Court concluded, respondent Randy Moore had not done so.

Moore pled no contest to felony murder and received the minimum sentence for that offense. He confessed to police and described the crime to two other people; Moore’s lawyer did not attempt to suppress the confession to police before Moore entered into the plea deal. The Ninth Circuit ruled that the failure to suppress the confession constituted ineffective assistance of counsel, and that the state court’s ruling to the contrary had been an unreasonable application of clearly established law.

In reversing that decision, the Court quoted at length from Harrington v. Richter, (in which, on the same day as its opinion in Moore, the Court rejected another ineffective assistance claim) to emphasize that when a federal habeas corpus court reviews a state court’s application of the Supreme Court’s effective assistance of counsel jurisprudence, that review must be doubly deferential. First, Strickland v. Washington mandates a “strong presumption” that representation was within the “wide range” of constitutionally acceptable performance. Strickland thereby incorporates a great deal of deference to the decisions made by defense counsel, who may have known things that do not appear in the record, or may not have known things that would only later be revealed. Second, the Anti-Terrorism and Effective Death Penalty Act (AEDPA) only allows federal habeas corpus courts to correct unreasonable applications of Strickland, not decisions that were merely wrong. To succeed on habeas corpus, a petitioner must show that a state court was unreasonable in its application of a deferential standard.

Justice Kennedy structured the Court’s opinion around the two-part Strickland test, which asks first whether there was a constitutional deficiency in counsel’s performance and then whether any such failing was prejudicial. The first part asks whether any reasonable attorney would have performed as counsel did; in the context of a plea bargain, the second (as laid out by Hill v. Lockhart)asks whether there is “a reasonable probability that, but for counsel’s errors” the defendant would have insisted on going to trial rather than pleading guilty. The Court held that Moore failed to satisfy either half of the test.

In the first part of its Strickland analysis, the Court explained that a reasonable state court could have accepted the explanation given by Moore’s lawyer: that the existence of two other confessions rendered it all but pointless to move to suppress the third. Because “[p]lea bargains are the result of complex negotiations suffused with uncertainty, and defense attorneys must make careful strategic choices in balancing opportunities and risks…. the potential for the distortions and imbalance that can inhere in a hindsight perspective may become all too real.” Moreover, “ineffective-assistance claims that lack [the] necessary foundation may bring instability to the very process the inquiry seeks to protect.” The Court also expressed concern that “[t]he prospect that a plea deal will afterwards be unraveled when a court second-guesses counsel’s decisions while failing to accord the latitude Strickland mandates or disregarding the structure dictated by AEDPA could lead prosecutors to forgo plea bargains that would benefit defendants, a result favorable to no one.” The Court ejected the Ninth Circuit’s application (in an opinion by Judge Stephen Reinhardt) of Fulminante’sholding that the failure to suppress a confession was prejudicial error, noting that “[t]he Fulminante prejudice inquiry presumes a constitutional violation, whereas Strickland seeks to define one.”

As for the second half of the Strickland analysis, the Court emphasized that “the question in the present case is not whether Moore was sure beyond a reasonable doubt that he would still be convicted if the extra confession were suppressed. It is whether Moore established the reasonable probability that he would not have entered his plea but for his counsel’s deficiency, and more to the point, whether a state court’s decision to the contrary would be unreasonable.” For that reason, Fulminante’s harmless-error inquiry – which asks whether a defendant would have been found guilty beyond a reasonable doubt absent the error – can never be applied in the context of a plea bargain. There is no way to know whether a jury would have convicted Moore even if it had heard his confession, much less if the confession had been suppressed. The Court also rejected the analysis in Judge Marsha Berzon’s concurring opinion, which would have applied Kimmelman v. Morrison to hold that Moore was only required to show that, but for his counsel’s inadequate performance, he was reasonably likely to receive a better plea deal. Instead, the Court emphasized, the proper test is found in Hill v. Lockhart: whether, but for counsel’s failings, a defendant was reasonably likely to insist on a trial.

Justice Ruth Bader Ginsburg filed a brief concurrence in which she indicated that because “Moore never declared that, better informed, he would have resisted the plea bargain and opted for trial,” she could not conclude that he had been prejudiced by any error his counsel may have made.